12. In the interest of protecting the right of convicted defendants to a fair appeal, the Appeals Chamber has, in limited circumstances, permitted amendments even where there was no good cause for failure to include the new or amended grounds in the original notice—that is, where the failure resulted solely from counsel negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which are of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if they were excluded.[1] In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of counsel.

19. The Appeals Chamber notes that the Appellant does not request to amend any of his grounds of appeal in the Notice of Appeal and Appellant’s Brief, but simply submits that the seven additional grounds should be included anew. The Appeals Chamber further notes that instead of seeking to demonstrate “good cause” for submitting the additional grounds of appeal at this late stage of the proceedings on appeal, the Appellant simply attaches the new grounds of appeal that he seeks to have admitted as part of the briefing.[2] […] Therefore, it is apparent that the Motion of 6 March 2006 is devoid of any arguments in relation to the requirements prescribed by Rule 108 of the Rules and the jurisprudence of the Appeals Chamber. In this respect, the Appeals Chamber finds that the Motion of 6 March 2006 is frivolous.

20. However, in fairness to the Appellant, who should not be prejudiced because of any negligence or inadvertence by his Counsel in failing to include the submitted additional grounds,[3] the Appeals Chamber will examine them in order to determine whether they should be included because they are of substantial importance to the success of the appeal or are likely to otherwise correct ambiguity or error in the previous filings without unduly delaying the appeal proceedings.

15. […] The Appeals Chamber recalls that “further analysis undertaken over the course of time”[1] cannot, in and of itself, constitute good cause for an amendment as this would effectively amount to allowing the appellant to “restart the appeal process at will.”[2] In addition, the Motion fails to explain how the newly alleged error resulted from Ojdanić’s personal insight. The alleged error concerns an issue of law and Ojdanić’s counsel is principally responsible for the assessment of potential legal errors in the Trial Judgement.[3] The Appeals Chamber therefore finds that Ojdanić fails to demonstrate good cause for not having alleged this error in his Notice of Appeal. Rather, the Appeals Chamber finds that the failure to present it in the Notice of Appeal constitutes inadvertence or negligence on the part of Ojdanić’s counsel.[4]

Cf. Pavković Decision on First Amended Notice of Appeal, recognizing the existence of good cause for a newly alleged error of fact.

16. In the circumstances of the present case, the Appeals Chamber observes that if Ojdanić indeed prevails on the merits of his argument, this would lead to the conclusion that the Trial Chamber convicted him on the basis of a legally erroneous interpretation of the mens rea element of crimes against humanity, which could have a direct implication on his criminal responsibility. Without pronouncing itself on the merits of the appeal, the Appeals Chamber concurs with Ojdanić’s submission that the amendment sought is “of substantial importance to the success” of his appeal, such that disallowing it would be prejudicial. It is therefore in the interests of justice that the proposed amendment be granted. The Appeals Chamber is further cognisant of the fact that none of the parties opposed the requested variation and that allowing for such variation would not unduly interfere with the expeditious administration of justice.